New Habitat Law in the Province of Buenos Aires

19/04/2013

In order to promote the right to housing and a dignified habitat, the Senate of the Province of Buenos Aires enacted the Law for Promotion of Popular Habitat (the “Law”), which amends the old Decree-Law No. 8912/77.

The author of the bill is Alberto Mariano España of Frente Para la Victoria party, along with co-authors Alicia Sanchez and Fabian Marcelo Sain. The Law was enacted on January 9, 2013 under No. 14,449.

The Law has been subject of harsh criticism related to the housing politics of the Governor of the Province of Buenos Aires, Daniel Scioli. The national deputy Francisco De Narvaez appealed in due course alleging the unconstitutionality of the Law. In his presentation, Narvaez sought to repeal the Law in its sections which explicitly violate the property rights of the inhabitants of the Province. Finally, the appeal was rejected by the Labour Court No. 4 of La Plata, composed of judges Rodolfo Francisco Martiarena, Guillermo Jorge Tórtora, and Enrique Catani.

The Law will govern actions aimed to solve urban housing deficit, giving priority to poor families with special needs, and forcing major enterprises installed in the Province to cede land or cash for the construction of social housing.

Regarding the foundations that support the enactment of the Law, we found the following:

– The right to use and enjoy the city and housing. This implies having a suitable place to live, where access to services is possible as well as the development of social, cultural and economic activities.

– The social function of the property, that is, to guarantee citizens an adequate quality of life, an environmentally sustainable use of land and social justice, taking into account the requirements and determination expressed in laws.

– The democratic management of the city, to promote access to housing and habitat.

In connection to investments, and in order to seize them rationally, the Law states the following conditions must be taken into consideration by the time of the houses emplacement:

1) the nearness to central areas;

2) the easiness of accessibility and connectivity;

3) the level of urban consolidation;

4) the coverage of basic urban services.

Transfers of land for housing and social developments will be binding. Therefore, both country clubs and gated neighbourhoods, private cemeteries, large commercial enterprises, and commercial establishments which form a chain of distribution according to the Law No. 12,573, which occupies more than five thousand meters square (5000m²) located in any municipality or urbanized centre, will have the obligation to cede in favour of the municipality ten percent (10%) of the total surface of the property, for free.

In exceptional cases, properly justified and approved in advance by ordinance, the transfer of land may be replaced by a cash payment in favour of the municipality. Regarding the payment options, the Law provides the participation in urban income may become effective by any of the following forms, which may be used alternatively or in combination, namely:

– In cash.

– Ceding a portion of the property to the municipality.

– Ceding properties located in other zones of Urban Area and/ or Complementary Area, making calculations of equivalency in relation with the values of the properties.

– Building infrastructure projects of public services and/or recreational areas, and by creating social facilities in areas of housing with law-income population, in agreement with the Municipal Executive Department regarding the terms of implementation and equivalence of planned works.

Finally, in relation to urban wasteland, or properties with demolished buildings, or properties with construction which have been paralyzed for more than five years, the municipalities may declare mandatory the parcelling and/or edification. Owners will have one year to comply with this disposition, in case of non-compliance, the municipality may apply a special charge on the property that will be progressive in time, by increasing the tax rate for a period of five consecutive years. If after those five years the obligation of edification is not met, the property will be declare of public utility and subject to expropriation by the municipality.